The politics of public records law is not pretty

At one time, Louisiana had one of the best public records laws in the country and, on paper, it probably still does.

But forces are eating away at it like termites in an old piece of pine.

Following the urging of one of Gov. Bobby Jindal's former executive counsels - Jimmy Faircloth - the Legislature approved a provision called "deliberative process" that exempts from the public records law any documents or other types of communication used by the governor to make a decision.

It applies to anything that was used, considered, proposed or even dreamed of during the process.

The dangerous part of that is it's now being used by other state agencies, and at the suggestion of former Jindal Executive Counsel Liz Murrill, even LSU used "deliberative process" to deny access to a list of applicants for president/chancellor.

Other state agencies also are illegally claiming the privilege.

As bad as the law is, it's pretty straightforward, but it does leave loopholes that are open to interpretation.

For example, "'Deliberative process' means the process by which decisions and policies are formulated."

That is open-ended.

But the law also is specific in its open-endedness.

It says "Records 'relating to the deliberative process of the governor' means all forms of predecisional advice, opinions, deliberations, or recommendations made for the purpose of assisting the governor in the usual course of the duties and business of his office."

The exemption lies in RS 44:5 titled "Records of the governor.

"A. This Chapter (open records) shall not apply to any records having been used, being in use, possessed, or retained for use by the governor in the usual course of the duties and business of his office relating to the deliberative process of the governor, intra-office communications of the governor and his internal staff, the governor's security and schedule, or communications with or the security and schedule of the governor's spouse or children.

B. (1) Except as otherwise provided in this Subsection, the provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor."

There it is - "the provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor."

B (2) explains that "'Internal staff of the governor' means the governor, chief of staff, executive counsel, director of policy, and employees under their supervision. Internal staff shall not mean any person employed in any other executive agency, including those designated by state law as housed in or transferred to the office of the governor."

There it is again. "Deliberative process" applies only to the governor and his closest advisers.

So how do other agencies think it also applies to them? Because they have not been legally challenged on that and until a court says they can't do it, they probably will keep doing it in violation of state law.

Lawsuits are expensive, Lafayette attorney Kevin Blanchard pointed out at a recent Acadiana Press Club meeting focused on open records, and courts can interpret laws as they see fit. So challenging it could be dangerous.

Many courts - save the ones that threw out Jindal's using public school money to fund vouchers and his plan to set up a new retirement plan - are friendly ground for the state.

Carl Redman, former executive editor of The Advocate and chairman of the Louisiana Press Association's Freedom of Information Committee, said at the press club gathering that under the current administration, "the default position is secrecy.

"The lengths state government will go to keep things secret is appalling," he said.

For years, the press and the public could rely on the attorney general's office to immediately step in and tell state agencies what is public and what can be kept private and whether the open meetings law was being violated. Now, there's no one in that office to do that.

"The problem with today's public records law is enforcement is left to the public," Redman said.

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The politics of public records law is not pretty

At one time, Louisiana had one of the best public records laws in the country and, on paper, it probably still does.